from the not-our-film-studios dept

Over the past few weeks, we've mentioned in a couple of posts that the Copyright Office is currently taking public commentary for changes to the DMCA's anti-circumvention exemptions provisions. While we've thus far limited our posts to the Museum of Art and Digital Entertainment's bid to have those exemptions extended to preserving online video games and the ESA's nonsensical rebuttal, that isn't the only request for expanded exemptions being logged. A group of filmmaker associations put in a request last year for anti-circumvention exemptions to be extended to filmmakers so that they can break the DRM on Blu-ray films in order to make use of clips in new works. At issue is the fact that these filmmakers are able to make use of clips in these new works thanks to fair use but cannot readily get at them due to the DRM on the films themselves.

This is confusing and creates uncertainty, according to the International Documentary Association, Kartemquin Films, Independent Filmmaker Project, University of Film and Video Association, and several other organizations. Late last year they penned a submission to the Copyright Office, which is currently considering updates to the exemptions, where they argued that all filmmakers should be allowed by break DRM and rip Blu-rays. The documentary exemptions have been in place for years now and haven’t harmed rightsholders in any way, they said.

“There is no reason this would change if the ‘documentary’ limitation were removed. All filmmakers regularly need access to footage on DVDs and without an exemption to DVDs, many non-infringing uses simply cannot be made,” the groups noted.

So, there are several groups that lobby for documentarians going to bat for the larger filmmaking world, having seen just how beneficial the exemptions they enjoy have been to the documentary craft. Frankly, it's nice to see associations such as these not simply staying in their own lane and instead advocating for their larger craft as a whole. Unlike, say, the MPAA which leapt to respond with claims of how awful all of this would be.

A group of “joint creators and copyright owners” which includes Hollywood’s MPAA, the RIAA, and ESA informs the Copyright Office that such an exemption is too broad and a threat to the interests of the major movie studios.

The MPAA and the other groups point out that the exemption could be used by filmmakers to avoid paying licensing fees, which can be quite expensive.

Which, of course, is precisely the point of these exemptions. An end-around of fair use by locking up content behind DRM in order to extract licensing fees from those that legally would otherwise not have to pay them is a special kind of perversion of the DMCA. Not to mention copyright law as a whole, actually. Recall that the entire purpose of copyright law in America is to promote the creation of more works for public consumption. What the MPAA is arguing is that these exemptions, which would do much to promote new work, should be cast aside in favor of a system in which those new works live at the pleasure of the licensing schemes of the major movie studios. Unlike the group petitioning for the exemptions, the MPAA isn't even bothering to hide who's interests it cares about.

If the filmmakers don’t have enough budget to license a video, they should look for alternatives. Simply taking it without paying would hurt the bottom line of movie studios, the filing suggests.

“Many filmmakers work licensing fees into their budgets. There is clearly a market for licensing footage from motion pictures, and it is clear that unlicensed uses harm that market.

“MPAA members actively exploit the market for licensing film clips for these types of uses. Each year, MPAA member companies license, collectively, thousands of clips for use in a variety of works,” the group writes.

The Copyright Office has limited the exemption to the documentary genre for a good reason, the creators argue, since non-documentaries are less likely to warrant a finding of fair use.

Except, thanks to the silliness of reserving fair use as an affirmative defense rather than a clearly defined statute, whether a use qualifies as fair use or not is a question to be answered after the use, not before. And that question isn't a valid reason to lock up content behind DRM from filmmakers that could make fair use of it.

The MPAA goes on to suggest that if the Copyright Office and the Librarian of Congress were to allow these exemptions, it would lead to "widespread hacking" that would ultimately defeat the DRM in Blu-ray discs entirely. Limiting the exemption to documentaries has kept this from happening because the documentary market is smaller. None of that, however, serves as a true copyright argument and instead is, again, all about the licensing fees Hollywood is able to extract by locking up content on discs behind DRM.

It is nice of the MPAA to lay its loyalties bare for all to see, however -- major movie studios and nobody else, it seems.

from the disappear-that-art dept

A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE's argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.

Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.

“The proponents characterize these as ‘slight modifications’ to the existing exemption. However they are nothing of the sort. The proponents request permission to engage in forms of circumvention that will enable the complete recreation of a hosted video game-service environment and make the video game available for play by a public audience.”

“Worse yet, proponents seek permission to deputize a legion of ‘affiliates’ to assist in their activities,” ESA adds.

The proposed changes would enable and facilitate infringing use, the game companies warn. They fear that outsiders such as MADE will replicate the game servers and allow the public to play these abandoned games, something games companies would generally charge for. This could be seen as direct competition.

There is a ton of wrong in there to unpack. To start, complaining that MADE's request would allow them to replicate the gaming experience of an online multiplayer game does nothing beyond essentially repeating what MADE is requesting. The whole idea is that these games should be preserved for posterity so that later generations can experience them, gaining an understanding of the evolution of the industry. How could this be accomplished without libraries and museums making the online game playable? And how is that different than what these folks do for non-online games? With that in mind, further complaining that museums might ask for help from others to accomplish this task doesn't make a great deal of sense.

As for the final complaint about these museums making these games playable when gaming companies normally charge for them is nearly enough to make one's head explode. Museums like MADE wouldn't be preserving these games except for the fact that these games are no longer operated by the gaming studios, for a fee or otherwise. What ESA's opposition actually says is that making older online games playable will compete in the market with its constituent studios' new online games. To that, there seems to be a simple solution: the game companies should keep these older online games viable themselves, then. After all, if a decade-old MMORPG can still compete with newer releases, then clearly there is money in keeping that older game up and running. Notably, game publishers aren't doing that. Were ESA's concerns valid, they surely would, unless they hate money, which they do not.

What's ultimately missing from ESA's opposition is what exactly is different about these online games compared with non-online games that already have these anti-circumvention exemptions. The closest it gets is complaining that preserving these online games would require server content that game companies haven't made public in the past. Why exemptions for that should be different than the code for localized games so that emulators can run them is a question never answered. That ESA chose not to offer up a more substantive answer to that question is telling.

from the oops dept

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.

However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.

In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

The Court finds that there is a “manifest showing” of the Court’s “failure to consider
material facts presented to the Court” because the Court did not provide any justification for the
permanent injunction.

Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.

For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.

In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:

Plaintiff’s proposed permanent injunction was ambiguous and went beyond the issues at
trial, facts which the Court did not consider when it granted the initial motion for a permanent
injunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense as
to images only displayed on Zazzle’s website and never physically manufactured. Dkt. 81.
Plaintiff withdrew its claims as to such “display-only” artworks prior to trial, so the issue was not
tried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both the
manufacture and distribution of physical goods, or also to display of images on the Zazzle
website. It is also unclear if Zazzle must take “reasonable” steps to address the display of images
on its website as well as its manufacture of products. The Court did not consider these material
facts in determining the scope of the permanent injunction; upon reviewing these facts, the
proposed injunctions go beyond the issues at trial.

It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.

But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:

The Court recognizes that it failed to consider material facts in granting the permanent
injunction in October 2017. The Court also recognizes that it provided no rationale for the
permanent injunction, manifestly showing the failure to consider such facts. Upon considering
those facts, the Court finds no basis for a permanent injunction in this matter.

Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.

from the preserve-and-protect dept

Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.

But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.

“Although the Current Exemption does not cover it, preservation of online video games is now critical,” MADE writes in its comment to the Copyright Office. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”

“Today, however, local multiplayer options are increasingly rare, and many games no longer support LAN connected multiplayer capability,” MADE counters, adding that nowadays even some single-player games require an online connection. “More troubling still to archivists, many video games rely on server connectivity to function in single-player mode and become unplayable when servers shut down.”

Due to that, MADE is asking the Copyright Office (and the Librarian of Congress) to allow libraries and museums exemptions to run their own servers to display these games as well. Frankly, it's difficult to conjure an argument against the request. If games are art, and they are, then they ought to be preserved. The Copyright Office has already agreed with this line of thinking for the category of games that don't require an online connection, so it's difficult to see how it could punt on the issue of online games.

And, yet, we have examples of fan-run servers of abandoned games, or versions of games, getting bullied by companies like Blizzard. These fan-servers are essentially filling the same role that groups like MADE would like to do: preserving old gaming content that has been made otherwise unavailable by companies that have turned down online game servers.

It's enough to make one wonder why a group of fans of a game shouldn't get the same protections afforded to a library or museum, if the end result is nearly identical.

from the what-the-fuck-twitter? dept

It is something of an unfortunate Techdirt tradition that every time the Olympics rolls around, we are alerted to some more nonsense by the organizations that put on the event -- mainly the International Olympic Committee (IOC) -- going out of their way to be completely censorial in the most obnoxious ways possible. And, even worse, watching as various governments and organizations bend to the IOC's will on no legal basis at all. In the past, this has included the IOC's ridiculous insistence on extra trademark rights that are not based on any actual laws. But, in the age of social media it's gotten even worse. The Olympics and Twitter have a very questionable relationship as the company Twitter has been all too willing to censor content on behalf of the Olympics, while the Olympic committees, such as the USOC, continue to believe merely mentioning the Olympics is magically trademark infringement.

So, it's only fitting that my first alert to the news that the Olympics are happening again was hearing how Washington Post reporter Ann Fifield, who covers North Korea for the paper, had her video of the unified Korean team taken off Twitter based on a bogus complaint by the IOC:

And Twitter complied even though the takedown is clearly bogus. Notice Fifield says that it is her video? The IOC has no copyright claim at all in the video, yet they filed a DMCA takedown over it. The copyright is not the IOC's and therefore the takedown is a form of copyfraud. Twitter should never have complied and shame on the company for doing so. Even more ridiculous: Twitter itself is running around telling people to "follow the Olympics on Twitter." Well, you know, more people might do that if you weren't taking down reporters' coverage of those very same Olympics.

Oh, and it appears that Facebook is even worse. They're pre-blocking the uploads of such videos:

This is fucked up and both the IOC and Facebook should be ashamed. The IOC can create rules for reporters and can expel them from the stadium if they break those rules, but there is simply no legal basis for them to demand such content be taken off social media, and Twitter and Facebook shouldn't help the IOC censor reporters.

from the everyone-creates dept

Online platforms have enabled an explosion of creativity — but the laws that make this possible are under attack in NAFTA negotiations. We recently launched EveryoneCreates.org to share the stories of artists and creators who have been empowered by the internet. This guest post from Public Knowledge's Gus Rossi explore's what's at stake.

In the past few weeks, we at Public Knowledge have been talking with decision-makers on Capitol Hill about NAFTA. We wanted to educate ourselves on the negotiation process for this vital trade agreement, and fairly counsel lawmakers interested in its effects on consumer protection. And we discovered a thing or two in this process.

It won’t surprise anyone that we don’t always agree with lobbyists for the big entertainment companies when it comes to creating a balanced copyright system for internet users. But some of the ideas these groups are advancing are widely misleading, brutally dishonest, and even dangerous to democracy. We wanted to share the two wildest ideas the entertainment industries are proposing in the new-NAFTA, so you can help us set the record straight before it’s too late:

1) Safe harbors enable child pornography and human trafficking.

Outside specialized circles, common wisdom is that “safe harbors” are free get-out-of-jail cards that internet intermediaries like Facebook can use to avoid all responsibility for anything that internet users say or do in their services. Leveraging this fallacy, entertainment industry lobbyists are arguing that safe harbors facilitate child pornography and human trafficking. Therefore, the argument follows, NAFTA should not promote safe harbors.

This is highly misleading. Safe harbors are simply legal provisions that exempt internet intermediaries such as YouTube or Twitter, and broadband providers such as Comcast or AT&T, from liability for the infringing actions of their users under certain specific circumstances. Without safe harbors, internet intermediaries would be obligated to censor and control everything their users do on their platforms, as they would be directly liable for it. Everything from social media, to internet search engines, to comments section in newspapers, would be highly restricted without some limitations on intermediary liability.

The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA 230) establish the two most important limitations for online intermediaries in US law. According to the DMCA, internet access providers (such as Comcast, AT&T, and Verizon) are not liable for the alleged copyright infringement of users on their networks, so long as they maintain a policy of terminating repeat infringers. Content hosts (such as blogs, image-hosting sites, or social media platforms) on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement.

CDA 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them directly responsible for what others say and do.

The relevant safe harbor for the interests of the entertainment industries is the DMCA, not CDA 230. CDA 230 specifically excludes copyright from its umbrella. And DMCA is exclusively about copyright. It is incredible dishonest and shallow for these lobbyists to use the specter of child abuse to drum up support for their position on copyright in NAFTA. No one should try to obfuscate a complicated policy discussion by accusing their opponents of promoting child sex trafficking.

2) Exceptions and limitations to copyright are unnecessary in trade agreements.

According to none other than the World Intellectual Property Organization, exceptions and limitations to copyright -- such as fair use -- exist “[i]n order to maintain an appropriate balance between the interests of rights holders and users of protected works, [allowing] cases in which protected works may be used without the authorization of the rights holder and with or without payment of compensation.” Without exceptions and limitations, everything from using a news clip for political parody, to sharing a link to a news article in social media, to discussing or commenting on just about any work of art or scholarship -- all could constitute copyright infringement.

Yet, the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.

This is also wildly inaccurate. American artists and creators remix, reuse, and draw inspiration from copyrighted works every single day. If our trade partners don’t adopt exceptions and limitations to copyright, then these creators could be subject to liability when exporting their work to foreign countries. Exceptions and limitations to copyright are necessary both in the US and elsewhere. Our copyright system simply wouldn’t work without them, especially in the digital age.

Conclusion: We need to set the record straight.

For its political and economic importance, NAFTA could be be the standard for future American-sponsored free trade agreements. But NAFTA could have dramatic and tangible domestic consequences if it undermines safe harbors and exceptions and limitations to copyright. In the next policy debate around copyright infringement or intermediaries liabilities, the entertainment industries will point to NAFTA as an example of the US Government’s stated policy and where the world is moving.

Furthermore, these lobbyists will have already convinced many on Capitol Hill that safe harbors enable child abuse and that fair use is unnecessary. The entertainment industries knows how to walk through the corridors of power day after day -- they’ve been doing so for well over a century.

It’s not too late to fight back, set the record straight, and defend a balanced approach to copyright and consumer protections in NAFTA. You can start by contacting your representative. But the clock is ticking. Join Public Knowledge in the fight to keep the internet open for everyone.

from the it's-not-a-broadcast-medium dept

One theme that we've covered on Techdirt since its earliest days is the power of the internet as an open platform for just about anyone to create and communicate. Simultaneously, one of our greatest fears has been how certain forces -- often those disrupted by the internet -- have pushed over and over again to restrict and contain the internet, and turn it into something more like a broadcast platform controlled by gatekeepers, where only the chosen few can use it to create and share. This is one of the reasons we've been so adamant over the years that in so many policy fights, "Silicon Valley v. Content" is a false narrative. It's almost never true -- because the two go hand in hand. The internet has made it so that everyone can be a creator. Internet platforms have made it so that anyone can create almost any kind of content they want, they can promote that content, they can distribute it, they can build a fan base, and they can even make money. That's in huge contrast to the old legacy way of needing a giant gatekeeper -- a record label, a movie studio, or a book publisher -- to let you into the exclusive club.

And yet, those legacy players continue to push to make the internet into more of a broadcast medium -- to restrict that competition, to limit the supply of creators and to push things back through their gates under their control. For example, just recently, the legacy recording and movie industries have been putting pressure on the Trump administration to undermine the internet and fair use in NAFTA negotiations. And, much of their positioning is that the internet is somehow "harming" artists, and needs to be put into check.

This is a false narrative. The internet has enabled so many more creators and artists than it has hurt. And to help make that point, today we're launching a new site, EveryoneCreates.org which features stories and quotes from a variety of different creators -- including bestselling authors, famous musicians, filmmakers, photographers and poets -- all discussing how important an open internet has been to building their careers and creating their art. On that same page, you can submit your own stories about how the internet has helped you create, and why it's important that we don't restrict it. Please add your own stories, and share the site with others too!

The myth that this is "internet companies v. creators" needs to be put to rest. Thanks to the internet, everyone creates. And let's keep it that way.

from the DRM:-if-it's-fixed,-break-it dept

What has DRM taken from the public? Well, mainly it's the concept of ownership. Once an item is purchased, it should be up to the customer to use it how they want to. DRM alters the terms of the deal, limiting customers' options and, quite often, routing them towards proprietary, expensive add-ons and repairs.

But the question "What would we have without DRM?" is a bit more slippery. The answers are speculative fiction. This isn't to say the answers are unimportant. It's just that it's tough to nail down conspicuous absences. The nature of DRM is that you don't notice it until it prevents you from doing something you want to do.

To better show how DRM is stifling innovation, Boing Boing's Cory Doctorow and the EFF have teamed up to produce a catalog of "missing devices": useful tech that could exist, but only without DRM.

“The law that is supposed to restrict copying has instead been misused to crack down on competition, strangling a future’s worth of gadgets in their cradles,” said EFF Special Advisor Cory Doctorow. “But it’s hard to notice what isn’t there. We’re aiming to fix that with this Catalog of Missing Devices. It’s a collection of tools, services, and products that could have been, and should have been, but never were.”

At this point, the collaboration has produced eight nonexistent tech advancements, but the EFF and Doctorow are still collecting and vetting submissions. From a firmware patch that turns Vapid Spyware Barbie into a one-way font of useful information to locking out snooping vehicle black boxes, the Catalog of Missing Items has something for everyone who's ever taped a Kuerig barcode onto a third-party coffee pod.

One of the biggest losers of the DRM/DMCA arms race is fan subtitles. Amateur creators of subtitles for foreign films have found themselves subjected to multiple DMCA notices, if not actual criminal proceedings. While it's understandable some production companies don't have the budget to produce dozens of different subtitles (or localize games), it's baffling the response is usually to harm people who are helping others. The problem is that adding subtitles means bypassing copyright protection and creating a new file with the subtitles or translation attached. Companies often view this as no different that regular old piracy, despite the added value created by fans of the content.

One of the hypothetical products offered by the "Catalog of Missing Devices" solves this. Called "Panfluent" by its creator, Nicola Ginzler, the software performs machine translation for any language, allowing all internet users to view/hear anything, almost anywhere, in their native language. It also would allow users to suggest better translations and have those added to Panfluent's databases. It would work across multiple platforms and unlock devices to prevent DRM from getting the way.

Another suggestion would correct a major annoyance with e-readers. It would allow users to select any font they want on any e-reader, freeing them from the "official" fonts handed to them by the manufacturer. This would greatly aid those who love reading, but have trouble doing so with normal e-readers. Default font choices seldom work out for sufferers of dyslexia or other cognitive disabilities. (Another addition to the catalog would force all e-readers to deploy text-to-speech.)

Other suggestions include freeing 3-D printers from proprietary supplies and turning a DVR into a meme factory by providing templates and the ability to capture any image at any time from recordings or live TV.

These are the sort of innovations we won't be seeing as long as anti-circumvention laws remain in place. DRM lock-in helps no one but the sellers of items and content and prevents purchasers from making full use of products and content they've paid for. The law criminalizes tinkering with certain purchases and sets up roadblocks for security researchers. It limits the usefulness of products and further restricts people with already limited access to content, like dyslexics or residents of countries producers have no interest in serving. Worse, every few years the few exemptions granted must be begged for again, lest they disappear forever. It's a bad law making the world a worse place and cedes far too much control to sellers, rather than those keeping them in business.

from the this-makes-no-sense dept

We've been following the BMG v. Cox lawsuit from the very beginning, through all its very odd twists and turns, including having a judge in the district court, Liam O'Grady, who made it quite clear that he didn't much care about the internet, and didn't see why it was a problem if people lost their internet access completely based on merely a few allegations of copyright infringement. The 4th Circuit appeals court has now overturned the lower court ruling and sent the case back to the district court for a do-over. While the initial decision was awful (as we discuss below), this new ruling makes a huge mess out of copyright law and will have serious, dangerous, and long-lasting consequences for the internet as a whole.

If you don't recall, the case involved BMG suing Cox Communications, though much of the case really hinged on the actions of another company, Rightscorp, who has been trying (and mostly failing) to build a business model around a form of mild copyright trolling. Rather than the aggressive "sue 'em and settle," strategy employed by others, Rightscorp would send DMCA takedowns to ISPs, with a settlement offer, and hope that the ISPs would pass those notices on to subscribers accused of infringing.

Cox Communications -- a decently large broadband provider -- made it quite clear to Rightscorp that it did not intend to be a part of its business model, and refused to pass on the settlement letters. Rightscorp started flooding Cox with notices... to the point that Cox decided to effectively just trash all inbound messages from Rightscorp as spam. After all this happened, Rightscorp signed BMG as a client, and then sued Cox, claiming the ISP had violated the DMCA by not kicking users off. What came out during the trial was that Cox basically had a "thirteen strike" policy (some of the earlier strikes involved stopping internet access until you read something and clicked something -- or requiring the user to call in to Cox).

What is rarely noted, of course, is that Cox was basically one of the only ISPs to actually have any termination policy for people who used their connections for copyright infringement. Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA's requirement for a "repeat infringer policy" was not directed at access providers, but at content hosts, where the issues are much clearer. However, BMG claimed here that Cox violated the DMCA's requirement for a repeat infringer policy -- and the court agreed. Cox was, partly, undone by some pretty bad behavior behind the scenes, that seemed to tar it as a "bad actor" and obscure the underlying copyright issues. Even more ridiculous was that Judge O'Grady later argued that Cox should pay the other side's legal fees, because even bringing up the idea that it was protected by safe harbors was "objectively unreasonable." That, itself, was crazy, since tons of copyright experts actually think Cox was correct.

On appeal there were two key issues raised by Cox. The main issue was to argue that O'Grady was incorrect and that the DMCA safe harbors covered Cox. The second pertained to the specific jury instructions given to the jurors in the case. The new ruling unfortunately upholds the ruling that Cox is not covered by the DMCA's safe harbors, but does say that the instructions given to the jury were incorrect. Of course, it then proceeds to make a huge muddle of what copyright law says in the process. But we'll get to that.

The Impact on Safe Harbors

Let's start with the safe harbors part of the ruling, which is what most people are focusing on. As the court notes, Cox (correctly, in my view), pointed out that even if it was subject to a repeat infringer policy, that should cover actual infringers, not just those accused of infringing. After all, it's not like there aren't tons upon tons of examples of false copyright infringement accusations making the rounds, and that's doubly true when it comes to trolling operations. If the rule is that people can lose all access to the internet based solely on unproven accusations of infringement, that seems like a huge problem. But, here, the court says that it's the correct way to read the statute:

Cox contends that because the repeat infringer provision uses the term “infringer” without modifiers such as “alleged” or “claimed” that appear elsewhere in the DMCA, “infringer” must mean “adjudicated infringer.” But the DMCA’s use of phrases like “alleged infringer” in other portions of the statute indicates only that the term “infringer” alone must mean something different than “alleged infringer,” otherwise, the word “alleged” would be superfluous. Using the ordinary meaning of “infringer,” however, fully accords with this principle: someone who actually infringes a copyright differs from someone who has merely allegedly infringed a copyright, because an allegation could be false. The need to differentiate the terms “infringer” and “alleged infringer” thus does not mandate Cox’s proposed definition.

Moreover, other provisions of the Copyright Act use the term “infringer” (and similar terms) to refer to all who engage in infringing activity, not just the narrow subset of those who have been so adjudicated by a court. For example, § 501(a), which creates a civil cause of action for copyright owners, states that “[a]nyone who violates any of the exclusive rights of the copyright owner” provided for in the statute “is an infringer of the copyright or right of the author.” 17 U.S.C. § 501(a) (emphasis added).

Similarly, the DMCA itself provides that ISPs who store copyrighted material are generally not liable for removing “material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.” Id. § 512(g)(1) (emphases added). This provision expressly distinguishes among three categories of activity: activity merely “claimed to be infringing,” actual “infringing activity” (as is apparent from “facts or circumstances”), and activity “ultimately determined to be infringing.” The distinction between “infringing activity” and activity “ultimately determined to be infringing” in § 512(g) shelters ISPs from being liable for taking down material that is “infringing,” even if no court “ultimately determine[s]” that it is infringing — because, for example, the copyright holder simply does not file a lawsuit against the person who uploaded the infringing material. As this provision illustrates, Congress knew how to expressly refer to adjudicated infringement, but did not do so in the repeat infringer provision.

Again, the obvious implications of this are... insane. It means that you can potentially get people completely kicked off the internet with a series of knowingly false accusations of copyright infringement. How could anyone justify that as a reasonable policy?

The court insists that the legislative history supports this... but the only way it does is if you torture the legislative history and ignore what it says. Here's what the court says:

The legislative history of the repeat infringer provision supports this conclusion. Both the House Commerce and Senate Judiciary Committee Reports explained that “those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.” H.R. Rep. No. 105-551, pt. 2, at 61 (1998); S. Rep. No. 105-190, at 52 (1998). This passage makes clear that if persons “abuse their access to the Internet through disrespect for the intellectual property rights of others”—that is, if they infringe copyrights — they should face a “realistic threat of losing” their Internet access.

But, again, based on the ruling here, this still applies even if the accusations are totally false and no infringement occurred. The court seems to ignore the word "abuse" in this statement and doesn't even bother to consider that there may be abuse on the other side -- in the form of copyright trolling against non-infringers (or simply trying to harm or silence the speech of a non-infringer).

Next up, the court has to determine whether or not Cox's repeat infringer policy was "reasonable." This, itself, is a minefield. The law provides no guidance beyond that to qualify for the safe harbor the provider has to have "adopted and reasonably implemented... a policy that provides for the termination in appropriate circumstances of subscribers... who are repeat infringers." That seems to leave an awful lot of discretion to the provider -- which the court admits... before determining that it doesn't think Cox's policy was reasonably implemented. And this is where a few bad actions by Cox employees comes back to haunt the company:

Here, Cox formally adopted a repeat infringer “policy,” but, both before and after September 2012, made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.

The words of Cox’s own employees confirm this conclusion. In a 2009 email, Jason Zabek, the executive managing the Abuse Group, a team tasked with addressing subscribers’ violations of Cox’s policies, explained to his team that “if a customer is terminated for DMCA, you are able to reactivate them,” and that “[a]fter you reactivate them the DMCA ‘counter’ restarts.” The email continued, “This is to be an unwritten semi-policy.” Zabek also advised a customer service representative asking whether she could reactivate a terminated subscriber that “[i]f it is for DMCA you can go ahead and reactivate.” Zabek explained to another representative: “Once the customer has been terminated for DMCA, we have fulfilled the obligation of the DMCA safe harbor and can start over.” He elaborated that this would allow Cox to “collect a few extra weeks of payments for their account. ;-).” Another email summarized Cox’s practice more succinctly: “DMCA = reactivate.” As a result of this practice, from the beginning of the litigated time period until September 2012, Cox never terminated a subscriber for infringement without reactivating them.

One would hope that this part of the ruling would at least, somewhat, protect other ISPs that don't send stupid emails like that. But, you never know.

The Messed Up Jury Instructions

To fully follow the issues here, we have to take a quick tour to key copyright cases of years past. In the Betamax Case, Hollywood sued the makers of VCR devices (okay, okay, Betamax devices) for selling a product that its customers used to infringe. In 1984, the Supreme Court said that was crazy, and since the VCR had "substanitial non-infringing uses," it was legal to sell it, even if it was used to infringe. Almost 20 years later, the Supreme Court chopped away at this standard a bit in the unfortunate (and still wrong) Grokster case, that said even if the tool had substantial non-infringing uses, if the company "induced" infringement, then it could still be liable. But there had to be fairly strong evidence of actual inducement by the company -- in Grokster, the company more or less encouraged people to infringe.

Cox asked the court to use the Betamax standard in the jury instructions, saying that it's not contributory copyright infringement if there are substantial non-infringing uses -- but the lower court rejected that, and this court does too, pointing to Grokster (but not actually groking what the Grokster court said). But a second complaint about the jury instructions does win the support of the appeals court. Cox, rightly, argued that the jury instruction telling jurors that the standard for contributory infringement was if the company "knew or should have known of such infringing activity." The big problem here is the "should have known" part. That is not the law. It's not in the law. It's not supported by court decisions and has been rejected by numerous court decisions. And, here, the court finally gives Cox a break and says that those jury instructions went too far. "Should have known" is a negligence standard -- it suggests even if you didn't know, you were negligent in not knowing, and therefor still liable. But copyright law demands actual knowledge. And thus, the original ruling is thrown out and sent back to the court.

But... even with the jury verdict being tossed, this discussion is... weird. And troubling. Remember, the Grokster standard is about "inducement" which involved a level of intent on the part of the service provider. That's about taking specific actions to encourage the use for infringement. But, the court here keeps slipping into a separate question of "knowledge." The knowledge question and the inducement/intent question are two separate questions. But it's not clear that the court even realizes that. It keeps going back and forth between questions about inducement and questions about actual knowledge, to the point that it almost appears the court thinks these are the same things. But knowledge alone is not enough to prove a party induced others to infringe on a copyright.

See the following discussion:

First, Grokster’s recitation of the standard—that “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement” — is on its face difficult to reconcile with a negligence standard. See 545 U.S. at 930 (emphasis added). In addition, it would have been unnecessary for the Court to discuss in detail the situations in which intent may be presumed, and those situations, like Sony, in which it may not, if liability did not require intent at all, but merely required negligence....

Looking to patent law, as the Supreme Court did in Sony and Grokster, further counsels against a negligence standard. The Supreme Court has long held that contributory patent infringement requires knowledge of direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964). And in 2011, the Court held that willful blindness satisfies this knowledge requirement, but recklessness (“one who merely knows of a substantial and unjustified risk of . . . wrongdoing”) and negligence (“one who should have known of a similar risk but, in fact, did not”) do not. Global-Tech, 563 U.S. at 769–71. The Court reaffirmed this holding in 2015, stating that contributory patent infringement “requires proof the defendant knew the acts were infringing,” and that Global-Tech “was clear in rejecting any lesser mental state as the standard.” Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1928 (2015). The Court expressly rejected the possibility “that a person, or entity, could be liable even though he did not know the acts were infringing.” Id. Thus, in the patent context, it is clear that contributory infringement cannot be based on a finding that a defendant “should have known” of infringement.

In both Grokster and Sony, the Supreme Court adopted now-codified patent law doctrines— the staple article doctrine and the inducement rule. The Court did so because of “the historic kinship between patent law and copyright law,” Sony, 464 U.S. at 439–42, and the similar need in both contexts to impose liability on “culpable expression and conduct” without “discouraging the development of technologies with lawful and unlawful potential,” Grokster, 545 U.S. at 936–37. We are persuaded that the Global-Tech rule developed in the patent law context, which held that contributory liability can be based on willful blindness but not on recklessness or negligence, is a sensible one in the copyright context. It appropriately targets culpable conduct without unduly burdening technological development.

Note that the first paragraph is about inducement, which has specific characteristics, and the latter two are about "knowledge." But knowledge isn't what proves the intent for inducement. So... even as it's right to kick this back to the lower court, it feels like the 4th Circuit got twisted up by its own reasoning.

Then there's the issue of what the court means when it talks about "specific instances of knowledge." See this paragraph:

Selling a product with both lawful and unlawful uses suggests an intent to cause infringement only if the seller knows of specific instances of infringement, but not if the seller only generally knows of infringement. See Ludvarts, 710 F.3d at 1072 (holding that contributory copyright infringement “requires more than a generalized knowledge . . . of the possibility of infringement”; it requires “specific knowledge of infringement”). A seller who only generally knows of infringement is aware that “some of [his] products will be misused” — but critically, not which products will be misused.

This same issue came up in the Viacom v. YouTube case, in which it was found that YouTube wasn't infringing just because it had "general knowledge" that it was hosting some infringing content. It could only be liable if it had actual knowledge of infringing content and then failed to take it down. But... how the hell do you apply that standard here? You can see how it would apply to YouTube, where YouTube can go and see the file still hosted on its servers after being notified that it's infringing and then check to see that it is, indeed, the same material as the copyright holder claims. For an ISP, however, where the data is in motion, as opposed to at rest, all you have to go on are these often erroneous notifications from Rightscorp claiming infringement. But by the time an ISP like Cox would look at it... the transmission would be complete. So how can Cox have "actual knowledge" of infringement -- absent a court ruling that the activity was infringing (bringing us all the way back around to the first point made above)?

Either way, this case is hardly over yet, as there's still another trial to now go through. But, as it stands, it's making a big mess out of copyright law. And that's not good.

from the really.--everyone.-stop-it. dept

This is one of those frustrating stories where basically everyone's wrong about everything. Here's how it started: Just prior to Ajit Pai's FCC officially dumping net neutrality rules last week, the Daily Caller released a video with Pai. Pai seems to have a way of not realizing just how incredibly unfunny, tone-deaf and cringeworthy his "jokes" are -- but it doesn't stop him from trying again. If you somehow missed it, you can see the video here:

The video is bad and dumb and misleading and, yes, very, very cringeworthy. The pure awfulness of the video is what got people worked up initially, with Pai's supporters gleefully laughing at Pai's opponents for getting upset about it. If you can't see it for some reason, it involves Pai claiming that nothing is going to change on the internet following his bad decision to kill the FCC's net neutrality rules, and then attempts to show some examples: posting images of food and dogs to the internet, doing some online shopping, being a dorky Star Wars fan and, finally, "ruining a meme."

That meme? The Harlem Shake. If you were online in 2013, you almost certainly remember it. Because it was everywhere. For a couple months or so, everyone on the internet seemed to feel it was their obligation to create a video showing people crazy dancing to a snippet of the song "Harlem Shake" by "Baauer" the stage name of a music producer named Harry Rodrigues. The song, the Harlem Shake uses a sample from another song, Miller Time, by Philadelphia's Plastic Little. Also, the "con los terroristas" line was sampled from a singer named Hector Delgado.

Back in 2013, we actually had a few stories about copyright issues around the whole Harlem Shake phenomenon. First, we noted that Baauer and his label, Mad Decent, seemed to have engaged in selective enforcement of whatever copyright they might have held on the song. They left most videos live on, but did take down some from people they disagreed with. We also noted that the whole meme went viral not for anything that Baauer actually did, but because of the first few videomakers whose crazy videos turned it into a thing. Finally, we noted that Delgado and Plastic Little were demanding their cut as well.

And, of course, we should note that the whole Harlem Shake meme came and went pretty fast. I mean days after it went big, it was already declared dead. And, yes, this was part of the lame Pai joke.

Onto outrage two: soon after everyone was complaining about how awful (and inappropriate) this video was, some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video... was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet).

Outrage three: we're back to copyright. Baauer tweeted angrily that he supported net neutrality and was "taking action" saying "whatever I can do to stop this loser."

"The use of my song in this video obviously comes as a surprise to me as it was just brought to my attention. I want to be clear that it was used completely without my consent or council. My team and I are currently exploring every single avenue available to get it taken down. I support Net Neutrality like the vast majority of this country and am appalled to be associated with its repeal in anyway."

So, let's be clear why this is also bad. The use here is obviously fair use. In the past we argued that all of the Harlem Shake videos were likely fair use, but the case with the Pai video is even stronger. It's clearly a parody in making fun of the song's use in the old dead meme, and parody is non-infringing as fair use. If there was a lawsuit, Pai/FCC/Daily Caller would win. Furthermore, it appears that Baauer is basically trying to assert a sort of "moral" right into copyright that doesn't exist under US law. Moral rights, which are available in other countries (and only on limited works in the US -- but not music) allow an artist to block an otherwise legal usage by saying they don't want to be associated with it. But not in the US.

Indeed, Baauer seems to be admitting his intent to misuse copyright to silence speech he doesn't like. That's bad. Even if I agree that Pai's video is awful and his effort to destroy net neutrality is terrible, that still doesn't make it right to abuse copyright law to silence speech.

But... that didn't stop Baauer's label, Mad Decent, from going ahead and issuing a takedown and promising to sue if the video was not removed:

Official statement re the use of "Harlem Shake" in Daily Caller's video of FCC Chairman Ajit Pai: neither Mad Decent nor Baauer approved this use nor do we approve of the message contained therein. We have issued a takedown will pursue further legal action if it is not removed.

And, indeed, as with basically any YouTube takedown, the company took the video down:

There were many people who are quite rightly upset at Pai's killing of net neutrality who then quite wrongly cheered on this takedown. It may be fun to see someone you dislike have their speech silenced through abusive copyright takedowns, but that doesn't make it any less wrong. No matter how much you disagree with Pai (and we disagree with him around here quite a lot), pulling down his video over a copyright claim is clearly bad.

And that takes us to outrage four: The Daily Caller then totally flips its lid with laughable conspiracy theories about how YouTube only took the video down because Google supports net neutrality and wanted to silence Ajit Pai.

YouTube’s targeting of Daily Caller content and its willingness to remove our video for political purposes while millions of other uses are allowed to remain on the platform should stand as a terrifying prospect for every American.

Except that's ridiculous. YouTube takes down tons of videos when it receives a DMCA notice. Indeed, the web is filled with examples of YouTube taking down videos that should be protected by fair use. That's why users can counterclaim and say that it's fair use. And YouTube is pretty good about responding to such fair use counterclaims and getting the video back up. Which is what happened here. But, the Daily Caller insists the video only was put back up because it's big and has lots of influence (feel free to debate both of those points if you'd like).

There's still a possible future outrage: if Mad Decent and/or Baauer actually sue over it, which hopefully any reasonable lawyer will talk them out of doing.

So, again, everyone and everything in this story is awful. Pai's video is dumb, misleading, cringeworthy and awful. Pai's actions around net neutrality are awful. Pai cavorting with a conspiracy theorist is awful. Baauer and Mad Decent freaking out over obvious fair use of their song is awful. Mad Decent issuing a bullshit takedown is awful. YouTube complying with the takedown is awful. And the Daily Caller stupidly assuming the compliance with the takedown is for political reasons, rather than standard operating procedure for DMCA takedowns is awful.

In short: it's all awful. Horribly awful.

The FCC shouldn't be killing net neutrality. The chairman of the FCC shouldn't be making awful, misleading videos with nutty conspiracy theorists mocking the vast majority of the American public who disagree with his stupid plan. And he shouldn't include four year old memes, even if it's to parody old memes, because, really, let the fucking memes die. The people who got rich off the memes shouldn't then abuse copyright law to try to censor speech they don't like. And the people who made the stupid, awful video in the first place, shouldn't leap to laughable conclusions about why their video got taken down.

And I feel like I should end this post with "... and get off my lawn," though I'd much prefer that we live in a world where we weren't having competing narratives over censorship, where the internet remained open and free and non-discriminatory, and bogus copyright takedowns didn't take down expressive content, no matter how dumb it might be. Tragically, we're not there yet.